IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.A.T.Munnoli<br /> B.A., L.L.B (Spl.) - President <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> <br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 61/10 DATED 27.04.2010<br /> ORDER<br /> <br /> Complainant Smt. Radhamma W/o Bokkegowda, R/at Kaniyana hundi, Hampapura Hobli, H.D. Kote Taluk, Mysore District.<br /> <br /> (By Sri. N.R, Advocate)<br /> <br /> Vs. <br /> Opposite Party 1. Mahindra & Mahindra Financial Services Ltd., 2nd floor, Sadhana house, Behind Mahindra Towers, No.570, P.B. Marg, Worli, Mumbai-400018.<br /> 2. Mahindra & Mahindra Financial Services Ltd., No.1056, Kavitha Vilas, M.G. Road, Chamarajapuram, Mysore. <br /> (By Sri. Arun Kumar, Advocate)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 19.02.2010<br /> Date of appearance of O.P. : 08.03.2010<br /> Date of order : 27.04.2010<br /> Duration of Proceeding : 1 Month 19 days<br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> <br /> <br /> Sri. A.T.Munnoli,<br /> President<br /> <br /> <br /> 1. Complainant has filed the complaint Under Section 12 of the Consumer Protection Act, seeking direction to the opposite parties to return the Tractor bearing No.KA-09-T-5571 and trailer No.KA-09-T-5572 and compensation of Rs.2,00,000/- with cost of the proceedings.<br /> <br /> 2. In the complaint it is alleged that, the complainant is an agriculturist. To earn livelihood for their family, in the year 2007, to purchase Tractor and trailer complainant availed finance from the opposite parties. On 14.06.2007, she purchased the Tractor and the trailer out of the loan. The complainant being a rustic woman did not understand the design of the opposite parties. The opposite parties did not explain the terms and conditions of the agreement. Only signature was obtained on the papers. She was punctual in repayment of the loan. During the year 2009, the complainant could not pay the one EMI as her husband was hospitalized. That fact was informed to the second opposite party. The second opposite party assured to co-operate. In July 2009, some goonda/agents of opposite parties forcibly, without notice or intimation to the complainant illegally repossessed the Tractor and trailer. After said illegal act, the first opposite party sent notice dated 20.07.2009 falsely stating that, the complainant herself surrendered the vehicle. When the complainant demanded the explanation, the second opposite party has assigned some lame reasons to protect the illegal act. The first opposite party sent a notice on 14.09.2009 mentioning the date as 13.07.2009 stating that, the complainant has to pay Rs.3,58,261/-. The act of the opposite party is that, illegal and unfair. On 19.09.2009, complainant sent legal notice to the opposite parties to return the Tractor and trailer. The opposite parties have not cared to reply. The second opposite party requested the complainant not to initiate any legal steps and the vehicle will be returned. Believing the words, the complainant waited. She visited the office of the second opposite party many a times and requested for release of the vehicle. Because of the said illegal acts of the opposite parties, the complainant and her family suffered lot. They could not perform agricultural operation. The act of the opposite parties amounts to unfair trade practice as well as deficiency in service. On these grounds, it is prayed to allow the complaint.<br /> <br /> 3. The opposite parties at the out have denied all the materials allegations made in the complaint. It is contended that, the complainant has not paid the EMIs as agreed. Finaly oral demand was made by the opposite parties. The complainant voluntarily surrendered the vehicle. It is stated that, the complainant availed finance of Rs.3,20,000/- and finance charges amounting to Rs.1,92,000/- by executing loan agreement, for Rs.5,12,000/-. Tenure of loan was 48 months on half yearly installments. The complainant became chronic defaulter. The complainant instead of paying the installments, made attempt to hypothecate the vehicle to the third party. Hence, oral demand was made in the month of July 2009 and the complainant expressing her inability to make payment handed over possession of the vehicle to the opposite parties on her own will. Thereafter, the opposite parties sent demand notices on 20.07.2009 and 27.07.2009, calling upon her to make payment of outstanding EMIs. Said notices are served on the complainant. The complainant did not come forward to pay the EMIs, but making false allegations she sent notice dated 19.09.2009. The opposite parties did not reply the notice of the complainant under the hope that she will not proceed further. The opposite parties have sold the vehicle to one Channegowda, the higher bidder. The Tractor was sold for Rs.2,25,000/- and the trailer for Rs.55,000/-. While ceasing the vehicle, it was not in the good condition. The complainant is still due of Rs.1,91,025. On these grounds, it is prayed to dismiss the complaint.<br /> <br /> 4. To prove the facts alleged in the complaint, the complainant has filed his affidavit and produced certain documents. On the other hand, Legal Executive of the opposite parties has filed his affidavit and produced certain documents. We have heard the arguments and perused the records.<br /> <br /> 5. Now the points arises for consideration are as under:-<br /> 1. Whether the complainant has proved any deficiency in service on the part of the opposite parties and that she is entitled to the reliefs sought?<br /> 2. What order?<br /> <br /> 6. Our findings are as under:-<br /> Point no.1 : Negative.<br /> Point no.2 : As per the order.<br /> <br /> REASONS<br /> 7. Point no. 1:- Main grievance of the complainant is that, the second opposite party forcibly without giving notice or intimation, illegally seized the Tractor and the trailer. If the complaint proves the illegal seizer, then the further claim of the complainant will survive for consideration. Because admittedly, there is hypothecation agreement between the parties and as per the said agreement, the second opposite party, financier has got certain rights including to seizer and the vehicle hypothecated.<br /> <br /> 8. The second opposite party has contended that, the complainant because defaulter and despite letters and reminders the amount due us not paid and the complainant voluntarily surrendered the vehicle to the second opposite party. Hence, whether this defense could be believed, has to be considered.<br /> <br /> 9. The document at read ink page.82 of the file is produced by the opposite parties, it is dated 06.07.2009. In this letter of the complainant addressed to the second opposite party, it is narrated that, for various reasons, she was unable to repay the amount in time and a sum of Rs.1,20,000/- was due and as such voluntarily without pressure of anybody vehicle is being surrendered and within a month entire amount will be paid, failing which the vehicle may be auctioned. The said letter bears the Left Thumb Mark of the complainant. In view of this document, prima-facie, the contention of the opposite parties that, the complainant surrendered the vehicle being unable to clear the loan, cannot be brushed aside.<br /> <br /> 10. It has not been alleged and proved by the complainant that, the said documents has been obtained fraudulently or illegally with force and etc.,. In the absence of proof of the same, the said documents cannot be ignored. When prima-facie, opposite parties have made out that, the vehicle was voluntarily surrendered, there is no need for the opposite party to issue notice regarding seizer of the vehicle. In other words, opposite party has not seized the vehicle, but vehicle has been surrendered by the complainant. In this view of the matter, the contention of the complainant that, without notice, illegally the second opposite party has seized the vehicle cannot be believed and accepted.<br /> <br /> 11. Also, it is relevant to note that, prior to the documents referred to above another writing was given by the complainant, which is at page .81, wherein, it is stated by the complainant that, an installment was due and it will be cleared on 27.2.2008 and in case, the said amount is not paid, she was ready to surrendered the vehicle. This document also bears the Left Thumb Mark of the complainant. These documents prima-facie, firstly, establish that, the complainant was defaulter and due of the loan and secondly, her willingness and voluntariness regarding surrendering of the vehicle.<br /> <br /> 12. Learned advocate for the complainant submitted that, a letter dated 13.07.2009 was send by the 2nd opposite party to the complainant on 14.09.2009. That letter is regarding the amount due from the complainant. It is true from the postal seal, there is delay in sending the letter to the complainant, but that will not help the complainant to hold that, the seizer is illegal. The learned advocate further vehemently argued that, in respect of the notices dated 20.07.2009 and 27.07.2009, the postal acknowledgements do not bear the signature or Left Thumb Mark of the complainant, but signature of some other persons. It is true, on these postal acknowledgements, there is not Left Thumb Mark of the complainant, but as noted here before, when the complainant herself voluntarily surrendered the vehicle, assuming that, the postal acknowledgements do not bear the Left Hand Mark of the complainant, seizer of the vehicle cannot be held illegal. More over, in respect of these acknowledgements, counsel for the opposite party submitted that, the notices were sent to the complainant with proper address and on behalf of the complainant her family members might have received the same<br /> <br /> 13. For the complainant, order of the National Commission in Revision Petition No.737/2005 dated 10.03.2005 is relied upon. If the seizer of the vehicle is held proved as illegal as only the said order will help the complainant.<br /> <br /> 14. On the other hand, for opposite party ruling reported in I (2009) CPJ 502 is relied upon. In this ruling Hon’ble National Commission has held that, when the payment of installments were defaulted the financier repossessed the same, the financier is take over possession of the vehicle and put for sale and further notice not required to be served on the complainant for repossession.<br /> <br /> 15. Considering the facts and the discussion made here before, particularly, in view of the ruling reported by the learned advocate for the opposite parties seized of the vehicle is not proved on illegal and that there is deficiency in service on the part of the opposite parties. Accordingly, our finding on the point is in negative.<br /> <br /> 16. Point No. 2:- From the discussion made above and conclusion arrived at, we pass the following order.<br /> <br /> ORDER <br /> 1. The complaint is dismissed.<br /> 2. There is no order as to cost.<br /> 3. Give a copy of this order to each party according to Rules.<br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 27th April 2010)<br /> <br /> <br /> <br /> (A.T.Munnoli) <br /> President <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br /> <br />